Ridge v. Jones
| Citation | 71 S.W.2d 713,335 Mo. 219 |
| Decision Date | 17 May 1934 |
| Docket Number | 31603 |
| Parties | Frank I. Ridge v. Herbert v. Jones, Receiver of Clark Estate Company, Appellant |
| Court | United States State Supreme Court of Missouri |
Respondent's Motion for Rehearing Overruled May 17, 1934.
Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge; Opinion filed at September Term, 1933, February 23 1934; motion for rehearing filed; motion overruled May 17 1934; motion to transfer to Court en Banc filed; motion overruled at May Term, May 17, 1934.
Reversed and remanded.
Cooper, Neel, Kemp & Sutherland and Shughart & Johnson for appellant.
(1) The court erred in giving Instruction 1 offered by the plaintiff because: (a) The instruction in the light of the evidence required the driver of the car to do the impossible and placed a duty upon the driver before the plaintiff was placed in a situation of peril. (b) The instruction does not require the plaintiff to be in absolute peril or in a position of certain, definite, impending peril. (c) The instruction is broader than the proof. State ex rel. Fleming v. Bland, 15 S.W.2d 798, 322 Mo. 565; Phillips v. Henson, 30 S.W.2d 1065, 326 Mo. 282; Ritz v. Cousins Lumber Co., 59 S.W.2d 1078; McCoy v. Home Oil & Gas Co., 60 S.W.2d 725; White v. Mo. Motors Distributing Co., 47 S.W.2d 245; Banks v. Morris, 257 S.W. 482, 302 Mo. 254; Clark v. Ry. Co., 6 S.W.2d 594; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014, 300 Mo. 92; Stewart v. Mo. Pac. Ry. Co., 272 S.W. 696; Ziegelmeier v. E. St. Louis Sub. Ry. Co., 51 S.W.2d 1029; Baldwin v. Wells, 27 S.W.2d 435. (2) The court erred in refusing defendant's peremptory instruction requested at the close of plaintiff's evidence and at the close of all the evidence for the reasons that: (a) Under the evidence in this case, the plaintiff was not entitled to have the case submitted under the humanitarian rule. (b) The plaintiff's evidence convicts him of contributory negligence as a matter of law which would bar recovery under any theory of primary negligence charged against the defendant. (3) The court erred in giving plaintiff's Instruction 2 because: (a) The instruction is misleading and is a mere abstract statement of law. (b) The instruction was highly prejudicial to the defendant in view of the theory upon which the plaintiff submitted his cause. (c) The instruction was broader than the proof. Culbertson v. Ry. Co., 178 S.W. 272; Moran v. C. B. & Q. Ry. Co., 255 S.W. 335. (4) The court erred in refusing Instruction 10 offered by the defendant because said instruction properly declared the law and was supported by the evidence in this cause. Andres v. Cox. 23 S.W.2d 1069; 26 Cyc. 1522; Holloway v. Shield, 243 S.W. 163.
Watson, Ess, Groner, Barnett & Whittaker for respondent.
(1) Defendant's demurrers to the evidence were properly refused. (a) It is negligent to suddenly start a conveyance while a person is alighting therefrom or before he has had time to reach a place of safety. Brodsky v. Rieser, 186 N.Y.S. 841, 195 A.D. 557; 10 C. J. 951, sec. 1369; Jerome v. United Rys. Co., 155 Mo.App. 205; McCormack v. United Rys. Co., 238 S.W. 581; Paul v. Met. St. Ry. Co., 179 S.W. 788. In Missouri the statute casts upon the operator of an automobile the duty to exercise the highest degree of care. Therefore, the above cases dealing with the duty of the operator of a street car to ascertain that a passenger has alighted and reached a place of safety before starting the car are directly in point. Sec. 7775, R. S. 1929; Buckner v. Horse & Mule Co., 221 Mo. 710; Woodson v. Met. St. Ry. Co., 224 Mo. 707; McCray v. Ry. Co., 10 S.W.2d 936. (2) The instruction did not place a duty upon the driver before the plaintiff was placed in a situation of peril. The situation of peril contemplated by the humanitarian doctrine is not danger of being injured in any event, but only danger from being injured by the subsequent contemplated negligent act or omission of the defendant. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Bobos v. Krey Packing Co., 317 Mo. 108; Huckleberry v. Railroad, 324 Mo. 1025, 26 S.W.2d 980; Weed v. Am. Car & Foundry Co., 322 Mo. 137, 14 S.W.2d 652; Stewart v. Railroad, 272 S.W. 696; Behen v. Transit Co., 186 Mo. 430; Green v. Met. St. Rys. Co., 122 Mo.App. 647. (a) The peril was imminent and certain within the meaning of the humanitarian doctrine. It is not necessary that it be certain that the peril will result in injury, but only that it be definite and certain that a situation exists which exposes the plaintiff to danger that he may be injured by the contemplated act or omission of the defendant. Peril is defined as follows: Funk & Wagnall's Standard Dictionary. (b) In submitting a case under the humanitarian doctrine it is only necessary that the jury be required to find that plaintiff was in "a position of imminent peril" without the further requirement that the jury find that such peril was "absolute" or "certain," "definite," or "impending." See instructions approved in Montague v. Ry. Co., 264 S.W. 813; Erxleben v. Kaster, 21 S.W.2d 195; Luck v. Pemberton, 29 S.W.2d 197. (3) There was no evidence that the negligent driver was the agent or servant of plaintiff. Sweetman v. Snow, 187 Mich. 414, 153 N.W. 770; Woods v. Bowman, 200 Ill.App. 612; Stamper v. Jesse, 199 Ky. 324, 250 S.W. 1008; Neff v. Brandeis, 91 Neb. 11, 135 N.W. 232; Parsons v. Wisner, 113 N.Y.S. 922; Perry v. Fox, 156 N.Y.S. 369; Oullette v. Superior Motor & Mach. Works, 157 Wis. 531, 147 N.W. 1014; Mulroy v. Tarulli, 180 N.Y.S. 427. (a) The only evidence in any way relating to control of the driver by the plaintiff is that plaintiff felt "at liberty" to do those things which any guest or passenger for hire is at liberty to do. Chawkley v. Wabash Ry., 297 S.W. 26; Smith v. Ozark Water Mills, 215 Mo.App. 129, 238 S.W. 573; Irwin v. McDougal, 217 Mo.App. 645, 274 S.W. 923; Heyde v. Patten, 39 S.W.2d 813.
Cooley, C. Westhues and Fitzsimmons, CC., concur.
Action for damages for personal injuries. Plaintiff recovered judgment for $ 12,500 from which defendant appealed. On and prior to January 4, 1929, the date of plaintiff's injury, the defendant operated a storage garage in Kansas City in which plaintiff, a physician and surgeon, kept two automobiles, one belonging to and used by himself and the other used chiefly by his wife. Under the storage agreement between plaintiff and defendant, called "live storage," the former was entitled to have defendant, through an employee, whenever so requested by plaintiff, bring his car to his home or take him home therein from the garage, which was near his office, and then take the car back to the garage.
On the evening of January 4, 1929, plaintiff called at the garage for the purpose of having defendant's employee, Ralph Anderson, who usually though not always performed that service, ride to his home with him and bring the car back to the garage, which was part of the service for which he paid defendant. Plaintiff and Anderson got into plaintiff's car and, with plaintiff driving, proceeded to plaintiff's home which was located on the west side of Walnut Street, a north and south street in Kansas City. The weather was inclement. For several days previously more or less snow had been falling, melting somewhat during the day and freezing at night, and at the time in question, about seven o'clock p.m., it was sleeting, from all of which it resulted that the street in front of plaintiff's home was covered with ice and sleet and, as the street had been used by traffic and by children coasting thereon, the surface was somewhat uneven "rutty." Both rear wheels of plaintiff's car were equipped with chains. Plaintiff approached his home from the north. On arriving he found his wife's car parked at the west curb in front of the house, headed south. He first steered his car in toward the curb, then turned the front wheels outward toward the center of the street and brought the car to a stop a short distance behind his wife's car, with its right, or west, side four or five feet from the curb. The left, or east, side was slightly west of the middle line of the street. He so placed and stopped the car that when it should be started it could be driven forward toward the center of the street without further turning the front wheels and without striking the car in front. The rear part of the car, however, "overlapped" the east side of the car in front, from which it appears that it was stopped with the front wheels turned a little toward the left of the lengthwise axis of the car. After thus stopping his car plaintiff got out on the left or driver's side thereof and turned the car over to Anderson to be taken to the garage. He did not intend to walk around the car but meant to wait until Anderson had driven away and then to walk directly to the curb. As he was getting out Anderson slid over to the driver's side behind the steering wheel. After getting out plaintiff closed the door of the car and while he stood beside and close to the car and, as he testified, before he had had time to let go of the door handle, Anderson let in the clutch and started the car suddenly and rapidly with a jerk or "lurch," causing the rear wheels to skid. Plaintiff was standing within six to twelve inches of the running board, nearer the rear fender than the front. The car skidded toward him. The running board struck his right leg, knocking him down, and the rear wheel passed over his ankle or leg. Both bones of his leg above the ankle were broken, one fracture extending into the ankle.
Walnut Street at that point slopes downward to the south. It is paved...
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